A decision reached in a federal court in Air Products v. Livingston Parish is predicted to set precedence across the United States for carbon sequestration projects.

In this matter, in 2021, Air Products Blue Energy LLC announced it was building a $4.5 billion clean energy complex that would span several parishes near Baton Rouge, Louisiana. One of the sites is to produce hydrogen from natural gas, with 95 percent of the carbon emissions captured.

Another part of the project’s plan is to build a carbon sequestration facility beneath Lake Maurepas in Livingston Parish. The lake borders a protected swamp and is home to both commercial and sport fisherman.

“Industry refers to hydrogen produced with carbon capture as ‘blue hydrogen,’ as opposed to the ‘gray hydrogen’ produced without carbon controls,” says Facing South. “Supporters say Air Products' proposed ‘blue hydrogen’ project would help Louisiana, one of the nation's top natural gas producers, meet its clean-energy goals — even though when it comes to heating buildings blue hydrogen has a carbon footprint 20% larger than gas and coal. … But many locals are worried about where and how Air Products will store the captured carbon long-term.”

There is also concern about the impact of carbon storage on the lake and the surrounding environment.

Air Products had received approval for the “right to use state property to conduct activities for this carbon sequestration facility” from “the Louisiana State Legislature on October 13, 2021,” according to a Jones Day article published by Lexology. “But exactly one year later, the local government of Livingston Parish adopted a 12-month moratorium on ‘any activities associated with Class V wells where the well is specific to geologic testing of rock formation, monitoring, drilling, or injecting of CO2 for long term storage,’ hindering Air Products’ ability to move forward with the carbon sequestration facility.”

After the moratorium, Air Products filed suit in the U.S. District Court for the Middle District of Louisiana.

“In its motion for a preliminary injunction, Air Products argued that the moratorium is preempted by federal and state law,” Jones Day continues. “While the court disagreed with the argument that the federal Safe Drinking Water Act preempted the moratorium, as Congress has recognized value in encouraging local standards for underground injection activity that are stricter than federal minimums, the court agreed that the Louisiana Legislature intended to preempt local regulation of underground injection control (UIC), citing a case from the Louisiana First Circuit Court of Appeal in support.”

On December 26, 2022, Federal Judge Shelly Dick ruled in favor of a motion for a preliminary injunction against the moratorium. A denial was also issued for a motion of dismissal from Livingston Parish, which meant that the Air Products project would be able to continue.

“The court concluded that the moratorium is preempted in that it encroaches on the field of UIC, as Louisiana allows UIC wells through its own UIC program,” adds Jones Day. “In issuing the injunction, the court signaled a focus on a need for uniformity across the field. This opens the door for Air Products to complete testing and surveying in preparation for building its facility. It also opens the door for other similarly situated facilities around the state to pursue carbon sequestration projects.”